Bangalore District Court
The Amulya Park vs Dr. Palanisami on 5 October, 2020
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-12) AT BENGALURU
Dated this the 5th day of October, 2020.
PRESENT:
Sri MALLANAGOUDA, B.Com.,LL.M.,
Concurrent Charge of the XVI Additional City Civil
and Sessions Judge (CCH-12), Bengaluru.
ORIGINAL SUIT No.5682/2017
PLAINTIFF : The Amulya Park
Apartment Owners Welfare
Association, 5th Main Road,
T.C. Palya Road, N.R.I. Lay-
out, Kalkere, Ramamurthy
Nagar, Bangalore - 560
016, represented by its
Secretary Nagalingaraju,
Son of Narayana, Aged
about 55 years,
Occupation: Business,
Residing at 3C, Amulya
Park Apartment, 5th Main
Road, N.R.I. Lay-out,
Kalkere Main Road,
Rammurthy Nagar,
Bangalore - 560 016.
(By Sri S.K. Shivashankar,
Advocate)
-VERSUS-
DEFENDANTS : 1. Dr. Palanisami,
Aged about 50 years,
Father's name not known to
plaintiff, Flat No.4D, 1 st
Block;
Cont'd..
-2- O.S. No.5682/2017
2. Vasudeva,
Aged about 61 years,
Father's name not known
to plaintiff, Flat No.C3, 2nd
Block;
3. Pradipappa Jagadale,
Aged about 40 years,
Father's name not known
to plaintiff, Flat No.G6, 2nd
Block;
4. Somasundaram Pushpa
Ganesh,
Aged about 34 years,
Father's name not known
to plaintiff, Flat No.G1, 2nd
Block;
5. Mrs. Daphney,
Aged about 35 years,
W/o. Benny Michael,
Flat No.2A, 1st Block;
6. Ram Jagadeesh,
Aged about 55 years,
Father's name not known
to plaintiff, Flat No.4B, 1st
Block;
7. Gunashekhar V.,
Aged about 45 years,
Father's name not known
to plaintiff, Flat No.G1, 2nd
Block;
8. Ashwin Ray,
Aged about 40 years,
Father's name not known
to plaintiff, Flat No.C7, 2nd
Block;
9. Divakar Chilakapati,
Aged about 38 years,
Father's name not known
to plaintiff, Flat No.1A, 1st
Block;
Cont'd..
-3- O.S. No.5682/2017
10. Anil Nair,
Aged about 40 years,
Father's name not known
to plaintiff, Flat No.B1, 2nd
Block;
11. Dhanashekhar Mani,
Aged about 40 years,
Father's name not known
to plaintiff, Flat No.IM, 1st
Block;
12. Arun Jayachandran,
Aged about 40 years,
Father's name not known
to plaintiff, Flat No.4J, 1st
Block;
13. Rajesh Padmanabha Nair,
Aged about 40 years,
Father's name not known
to plaintiff, Flat No.3E, 1st
Block.
Defendants 1 to 13 are
members of the illegal
interim committee Amulya
Park Apartment Owners'
Welfare Association, 5th
Main Road, N.R.I. Lay-out,
Kalkere,Ramamurthynagar,
Bangalore - 560016.
(Defendants 1 to 7 and 9 to
13 by Sri K.P.N., Advocate)
(Defendant No.8: Placed ex-parte)
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Date of Institution of the Suit : 19-08-2017
Nature of the Suit (Suit on : Injunction Suit.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 28-09-2018
of recording of the evidence
Cont'd..
-4- O.S. No.5682/2017
Date on which the Judgment : 05-10-2020
was pronounced
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Year/s Month/s Day/s
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Total duration : 3 years, 1 month, 16 days.
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(MALLANAGOUDA)
Concurrent Charge of the XVI Additional
City Civil and Sessions Judge (CCH-12),
Bengaluru.
JUDGMENT
This suit is filed by the plaintiff seeking permanent injunction to restrain defendants 1 to 13 from interfering with the affairs n the administration of the plaintiff's association.
2. The brief facts of the plaintiff's case are as under -
Plaintiff is the Secretary of Amulya Park Apartment Owners' welfare Association situated at Amulya Park, Block Nos.1-2, 5th Main, N.R.I. Lay-out, Kalkere, T.C. Palya Road, Ramamurthy Nagar, Bangalore. The Society has been registered under the Cont'd..
-5- O.S. No.5682/2017 Karnataka Societies Registration Act. It has got its own bye laws. Defendants 1 to 3 have no right, title or interest in the plaintiff society. In spite of it, without the knowledge of the plaintiff, they have formed a parallel interim committee vide illegal general body meeting dated 23.7.2017 - which is against the exiting bye laws. Hence, same is illegal and unauthorised. It is in complete violation of the bye-laws of the association. Defendants have conducted the said meeting with an intention to take over activity of the association and nullify the general body meeting scheduled on 27.8.2017. In view of the on-going festivals and request of the respondents, on 18.7.2017, plaintiff has preponed the general body meeting scheduled on 27.8.2017 to 20.8.2017 at 11:00 a.m. But, behind the back of the plaintiff, defendants 1 to 3 have formed illegal interim committee by conducting unofficial general body meeting on 23.7.2017. The said meeting by the defendants was called through WhatsApp and Google voting through electronic media - which is against the byelaws of the Association and without appointment of the returning officer to conduct Cont'd..
-6- O.S. No.5682/2017 the events of the election and the said meeting was called without approval of the Registrar of Co-operative Societies. After the said illegal meeting, defendants 1 to 13, through interim committee, are sending notice after notice through Google and WhatsApp pressurizing the plaintiff to hand over the charge of the Society and they have forcibly taken signatures of the plaintiff on some papers to operate accounts of the association - which is illegal and unlawful. According to byelaws of the association, only elected members of the association can elect the secretary and members of the executive committee, but not the interim committee illegally formed by the defendants. Plaintiff has invested lot of money out of his pocket. As the funds were deficit, whenever plaintiff asked the defendants about his investment, they are denying the plaintiff's claim. As such, plaintiff has given all the accounts to a registered Auditor for preparing report of the income and expenditure up to date as per the mandatory byelaws and regulations of the society. Plaintiff is discharging his duty with honesty and devotion as secretary without anticipation of any kind of benefits. Plaintiff is Cont'd..
-7- O.S. No.5682/2017 continuously working for the welfare of the association, but defendants are unnecessarily and highhandedly interfering with the smooth administration of the association by issuing frequent messages in WhatsApp and Google. When plaintiff informed the defendants that he will call general body meeting and furnish accounts, and if general body chooses election of new executive body, he will hand over all the accounts to the newly elected body according to the byelaws of the association and election rules, but the defendants are bent upon and pressurizing the plaintiff to give up his post as secretary and trying to take away all the accounts and other books maintained by the plaintiff. Plaintiff is taking care of association and its members, security in the apartment. He has provided all the basic necessities including lift, D.G., housekeeping, gym facilities, swimming, CC T.V., water management, S.T.P. management etc., but due to illegal intervention of defendants 1 to 13, plaintiff would be put to untold hardship and irreparable loss - which cannot be compensated in terms of money. On 25.7.2017, defendants tried to interfere in the affairs and Cont'd..
-8- O.S. No.5682/2017 administration of the plaintiff association, calling upon all the owners of the apartment to handover all the operations and original documents to the new interim committee of the defendants - which is illegal and ultravires the bye-laws. Therefore, plaintiff is constrained to file the suit seeking permanent injunction against the defendants.
3. Defendants have appeared through their Counsel and contested the matter. Defendant No.10 filed written statement and other defendants have adopted the written statement - in which, they contended as under -
Suit of the plaintiff is not maintainable, - same is liable to be dismissed. Suit filed by the plaintiff is in the personal capacity. Plaintiff has not taken any permission or consent of the association and hence, suit filed on behalf of Amulya Park Apartment Owners Welfare Association is not maintainable. Plaintiff has filed the suit by suppressing the true and material facts. Amulya Park Apartment Owners Welfare Cont'd..
-9- O.S. No.5682/2017 Association is consisting of 100 members who are all the owners of the apartments. Plaintiff claims to be the secretary of the association, but he is not the owner of any apartment - much less the apartment bearing Flat No.3K in Block No.I. Plaintiff has taken the charge as secretary of the association by misrepresenting to the members and the committee stating that he is the owner of the Flat and he has acted as secretary with effect from 17.7.2015 to 23.7.2017. In fact, plaintiff is the tenant of Flat No.3C in Block No.I. Though association members have repeatedly asked the plaintiff to submit his proof of ownership over the flat, he failed to submit the same. Since July, 2013, plaintiff used to operate association's Savings Bank accounts for collecting money, cash deposit and expenditure. He has transferred money of the association to his personal bank account. In all, he has transferred Rs.73,00,000/- to his account. Plaintiff has used the association office for running his own company by name 'Rajshru Multifold Mangement Consultancy Private Limited' without the consent of the association and without the consent of the association, he has awarded contracts to Cont'd..
- 10 - O.S. No.5682/2017 his own company. Plaintiff used to utilize common area electricity for his personal usage at his residence - Flat No.3C. It is noticed that the electricity bill of Flat No.3C is only Rs.100/- per month for many months during last one year. Now, after it was disconnected, the actual bill has come to Rs.2,500/-. After coming to know about the mismanagement of the plaintiff - Nagalingaraju, association members demanded his explanation and the present audit report to all the owners of the apartment, but he has not submitted any such audit report or explanation about the complaints against him. Since 2015, there was no general body meeting conducted and hence, owners of the flats have decided to conduct general body meeting on 23.7.2017. During such meeting, about 63 members were present and decided to form an interim committee. During the said general body meeting, first defendant has been elected as President of the Association and defendants 2 to 5 are elected as Vice-President, Treasurer, Secretary and Joint Secretary and other defendants are elected as committee members. Already plaintiff has handed over keys of the association office room and few records of Cont'd..
- 11 - O.S. No.5682/2017 the association. Though plaintiff has agreed to hand- over audit report of the association, till today, he has not handed over the same. However, now, defendants are managing the affairs of the Amulya Park Apartment Owners Association. Since plaintiff Nagalingaraju was acting as Manager from 2013 and Secretary/President from 17.7.2015 to 23.7.2017, he has misappropriated the association money - which runs to several lakhs. Hence, first defendant has filed complaint with the police. They registered F.I.R. and investigation is under progress. At no point of time, plaintiff has spent any amount from his pocket for the welfare of the association.
Averment of Para 5 of the plaint that Amulya Park Apartment Owners Welfare Association is registered in the year 2010-11, is denied. Averments that the plaintiff being secretary of the association has done lot of good works and commendable job and things to the society, are denied. Averments of Para 6 of the plaint are false and denied. In fact, all the owners have taken decision to form a new committee and accordingly, they Cont'd..
- 12 - O.S. No.5682/2017 called the general body meeting on 23.7.2017 and formed a new committee and they are running the association smoothly. Averments of Para 7 of the plaint are denied. On 20.8.2017, no meeting was held, - plaintiff is put to strict proof of the same. Plaintiff is not residing at all in the said apartment since August, 2017. Averments of Para 8 of the plaint are denied. Due to misappropriation of association money by the plaintiff, owners of the flats have decided to conduct general body meeting and there is no violation of the byelaws. Averments of Paras 9 to 12 are false and denied. Plaintiff never invested any money from his pocket. In fact, he has misappropriated the association money. Averments of Para 13 of the plaint are false and denied. Plaintiff has handed over keys of the association room and some documents to the new committee. However, till today, he has not at all handed over all the papers and accounts - for which members have filed police complaint - which is under investigation. Averments of Paras 14 to 16 are false and denied. Plaintiff has never taken care of the association. In fact, he has misutilized the association fund and Cont'd..
- 13 - O.S. No.5682/2017 cheated the association. Averments of Para 17 to 19 of the plaint are false and denied. There is no prima facie case. Balance of convenience is not made out by the plaintiff. There is no cause of action to file the suit. Hence, suit of the plaintiff is liable to be dismissed.
4. On the basis of the above facts, this Court framed the following -
ISSUES (1) Whether the plaintiff proves that the defendants are causing interference in its affairs and administration?
(2) Whether defendant Nos.1 to 13 prove that the plaintiff filed this suit in his personal capacity and not taken any permission/consent from the association and hence, suit is not maintainable?
(3) Whether the plaintiff is entitled for the relief as prayed for?
(4) What order of decree?
Cont'd..
- 14 - O.S. No.5682/2017
5. In support of the plaintiff's case, secretary of the plaintiff association viz., Nagalingaraju himself examined as P.W.1 and got marked documents as per Exs.P.1 to P.3 on behalf of the plaintiff.
6. On the other hand, defendant No.4 examined himself as D.W.1 on behalf of the defendants and got marked documents as per Exs.D.1 to D.5 on their behalf.
7. Heard arguments.
8. My findings on the above Issues are as under -
ISSUE No.1 - Negative;
ISSUE No.2 - Affirmative;
ISSUE No.3 - Negative;
ISSUE No.4 - As per final order, for the following -
Cont'd..
- 15 - O.S. No.5682/2017
REASONS
9. ISSUE NOs.1 AND 2 : Since both these Issues are inter-related with each other, they are being taken up together for discussion at a stretch in order to avoid repetition of facts.
10. Plaintiff has filed the present suit stating that he is the secretary of Amulya Park Apartment Owners' welfare Association; said association has been registered in the year 2010-11; defendants 1 to 3 have no right, title or interest in the plaintiff association; in spite of it, they formed a parallel interim committee vide illegal general body meeting dated 23.7.2017 - which is against the existing byelaws and now, they are pressurizing the plaintiff to handover charge of the secretary; for that, they have forcibly obtained his signatures on some papers to operate the accounts of the association, and on 25.7.2017, defendants have tried to interfere with the affairs and administration of the plaintiff association calling upon by the owners of the apartment to handover original documents to the new interim committee of the defendants.
Cont'd..
- 16 - O.S. No.5682/2017
11. On the other hand, plaintiff has filed the suit in his personal capacity without taking any permission or consent of the association. They have further contended that plaintiff is not the owner of any of the flats in Amulya Park Apartment and therefore, he cannot claim membership of Amulya Park Apartment Owners' welfare Association; in fact, by misrepresenting the members and the committee that he is owner of Flat No.3K in Block No.I, plaintiff has acted as Secretary from 17.7.2015 to 23.7.2017 - during which time, he used to operate the association's savings bank account with Syndicate Bank, Ramamurthy Nagar Branch and he has misused the funds belonging to Amulya Park Apartment Owners' welfare Association; he utilized the common area electricity for his personal use; he used the association office for running his own company viz., 'Rajshru Multifold Management Consultancy Private Limited'; therefore, by looking to the conduct of the plaintiff, the owners of the flats have conducted general body meeting on 23.7.2017 - in which, they had decided to form an interim committee - during which, defendants are selected as President, Vice-President, Cont'd..
- 17 - O.S. No.5682/2017 Treasurer, Secretary, Joint Secretary and the committee members.
12. During evidence also, plaintiff filed is affidavit as chief-examination once again reiterating the facts alleged in the plaint. In the cross-examination, he has admitted that the association has not consented for filing the suit and he has not even asked for such a consent. Therefore, as rightly contended by the defendants, when plaintiff has not at all produced any documents to show that presently he is working as secretary of the association and association authorized him to file the present suit in the name of the association, definitely as per Order XXIX, Rule 1 of the Code of Civil Procedure, plaintiff is not the proper person to sign the plaint on behalf of the association.
13. With regard to interference is concerned, plaintiff has not produced any documentary evidence to show that he is the secretary of the association as on the date of filing the suit. Therefore, any amount of evidence produced on behalf of P.W.1 with regard to interference by the defendants in the administration of Cont'd..
- 18 - O.S. No.5682/2017 the society, is of no use at all. Hence, in the absence of evidence to show that the person viz., Nagalingaraju who signs the plaint is the secretary of Amulya Park Apartment Owners' welfare Association, evidence produced by him cannot be considered to show about interference by the defendants in the affairs and administration of the plaintiff society. Therefore, if the evidence of P.W.1 is excluded, there remains nothing to show that the defendants have caused interference in the affairs and administration of the plaintiff society. Therefore, plaintiff has failed to produce evidence to show that defendants have tried to interfere in the affairs and administration of the plaintiff society. Hence, Issue Nos.1 and 2 are answered as above.
14. ISSUE No.3 : Since there is no sufficient material to show that the person viz., Nagalingaraju is the secretary of the plaintiff association and he has been authorized to sign the plaint, his evidence cannot be considered as 'evidence produced by the plaintiff'. Accordingly, there is nothing to show that the defendants have caused interference in the affairs and Cont'd..
- 19 - O.S. No.5682/2017 administration of the plaintiff society as contended in the plaint. Accordingly, Issue No.3 is answered in negative.
15. ISSUE No.4 : For my reasons and discussion on the above Issues, I proceed to pass the following -
ORDER Suit of the plaintiff is dismissed with cost.
Draw decree accordingly.
(Dictated to Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 5th day of October, 2020.) (MALLANAGOUDA) Concurrent Charge of the XVI Additional City Civil and Sessions Judge (CCH-12), An&/- Bengaluru.
Cont'd..
- 20 - O.S. No.5682/2017
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFF:
Examined on:
P.W.1 : Nagalingaraju 28-09-2018
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:
Ex.P.1 : Certified copy of the application filed by the association for registration. Ex.P.2 : Certified copy of the Resolution dated 28.8.2010 passed by the plaintiff association for registration. Ex.P.3 : Certified copy of Memorandum of Association of the plaintiff association.
3. WITNESS EXAMINED FOR THE DEFENDANTS:
D.W.1 : Somasundaram Pushpa Ganesh 23-02-2019
4.DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
Ex.D.1 : Extract of the minutes of general body meeting dated 27.7.2017 of the plaintiff association.
Ex.D.2 : Extract of the resolution of the plaintiff association dated 23.7.2017. Ex.D.3 : Rules and Regulations of the association. Ex.D.4 : True copy of the police complaint dated 14.9.2017.
Ex.D.5 : True copy of F.I.R. in Crime No.404/2017.
(MALLANAGOUDA) Concurrent Charge of the XVI Additional City Civil and Sessions Judge (CCH-12), An&/- Bengaluru.
Cont'd..